Lawyers pull apartheid card on Marikana witness

Brigadier Johannes Petrus Breytenbach hesitated, somewhat uncomfortably, when during cross-examination at the Marikana Commission of Inquiry Advocate Dali Mpofu asked if he had been a police officer for 10 years during the apartheid era.

As if sensing the discomfort caused by the hidden meaning of his reference to “the apartheid era”, Mpofu interjected.

“In other words before 1994?”

A man wearing a red T-shirt inscribed with the words “Divided we bargain – divided we starve” shifted in his seat in the public gallery at the Rustenburg Civic Centre, moving his head forward as if trying to get a closer look at the proceedings down on the stage.

Breytenbach switched on his microphone in preparation to respond. But Mpofu, probably sensing that his words had struck a blow to the man in the witness stand, continued.

“Sorry, I don’t mean it negatively,” he said.

The discomfort was felt even in the public gallery, where women sat, dressed in the traditional black and blue attire that signals they have recently been widowed.

Except for one who wears a veil over her face, whose security guard husband was allegedly killed by the striking miners, the women’s husbands all died when police opened fire on a crowd of striking miners on August 16.

It was clear from the beginning that Breytenbach, a training coordinator who joined the police in the days of Louis le Grange back in 1985, was not going to have the easiest of stints in the witness stand.

Firstly, he was called upon just a week after evidence led at the commission had suggested police had planted weapons near the bodies of defenceless mine workers who were hiding behind rocks.

Secondly, Breytenbach, is a white Afrikaner male who joined the police at a time when the police were synonymous with extrajudicial killings, torture, maimings and massacres aimed at suppressing opponents of apartheid.

Advocate George Bizos, who defended many opponents of apartheid during his distinguished career as a human rights lawyer, was the first to take pot shots at Breytenbach, with a focus on apartheid policing.

Bizos asked Breytenbach if he was aware that protesters had been shot dead by police during the apartheid era, referring in his questioning to Sharpeville (1960), Soweto (1976) and the state-orchestrated violence of the 1980s and early 1990s.

Breytenbach seemed to keep his cool, responding that he knew of the incidents. Then Bizos moved into overdrive, somewhat personalising the matter, linking Breytenbach to the policing of the time.

He asked Breytenbach if he knew of international interventions after 1994 to change the mind-set of local policemen.

“Would you dispute that there was a very serious attempt to re-educate each and every policeman and I would assume even you, to change your mind about the responsibility for the sanctity of the life of all citizens?”

Breytenbach replied that he did not know.

Bizos’ cross-examination of Breytenbach centred on why police units that “are trained to kill” were deployed to deal with a crowd of people who “were hungry, thirsty, and were simply gathered there to demand a living wage”.

Bizos asked Breytenbach if he would have authorised the deployment of the National Intervention Unit, Tactical Reaction Team and the National Task Force to deal with the crowd of striking mine workers at Marikana.

Breytenbach said he could not comment because he did not have all the facts regarding the situation at Marikana before him.

“Was a person that was unarmed and was there simply to fight for a living wage a criminal?” Bizos asked.

“I don’t want to comment on that because an unarmed person is not necessarily not a dangerous person,” replied Breytenbach.

“What would a person without a gun do to a police officer armed with an R5?” Bizos fired again.

Breytenbach refused to be drawn into making critical statements about operational decisions taken on the day, preferring instead to stick to what he knew of police regulations.

He said he understood the situation at Marikana on August 16 to have been much more complex than Bizos put it, and that there were more than 3 000 people gathered there on the day.

Concluding his cross-examination, Bizos turned personal again.

“I want to put it straight to you that we are going to argue that your attitude is that of Pontius Pilate who washed his hands and was not prepared to pass judgment on what you may have done or advised,” Bizos said.

“I’m not going to allow him to answer that question. Pontius Pilate was the governor of Judea, responsible for what was happening. This witness was not in any position, (or) in control of what’s happening. He wasn’t even on the scene. So the analogy with Pontius Pilate is irrelevant and inapplicable,” Farlam countered.

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